Government officials from the southern states once used literacy tests and poll taxes to deny African Americans their right to vote. It was a scandalous period in American history. Today, we have another scandal, but it is found in one our most liberal cities: New York's “stop and frisk” program.
Even though there is no bigotry at work, it's a scandal because the program systemically denies thousands of that city's residents of their constitutional right against unreasonable searches and detentions.
New York Governor Andrew Cuomo seems to recognize the severity of the problem. This week, he proposed decriminalizing small amounts of marijuana in public view. For years, thousands of young men in New York City have been acquiring criminal arrest records because of minor pot busts following a stop and frisk on the street by police.
By way of background, a “stop” is an involuntary citizen-police encounter—but it is an encounter that has not yet escalated to the point of a full blown arrest.
In other words, the person has not been handcuffed and taken into custody, but neither is he free to walk away. Often in full view of neighbors or passersby, the person may have to “assume the position” by placing his outstretched arms against a wall or the hood of a police car; or even lay down, prostrate, on the sidewalk.
It can be a degrading and humiliating event to endure.
The leading case on the so-called stop-and-frisk search is Terry v. Ohio (1968). In Terry, the Supreme Court held that a police officer could temporarily deprive persons of their liberty on the basis of what the Court called “reasonable suspicion,” which is a lower legal standard than “probable cause.”
The Court also held that if a police officer believed that his suspect might be armed, he could frisk the individual's clothing in order to neutralize the potential threat to the officer's safety.
There have been two important developments concerning the stop-and-frisk doctrine. The first concerns the absence of a remedy in the situations where the police violate a person's constitutional rights. That is, what happens if the cops just whimsically stop someone, frisk his garments, and pepper him with questions for 5-10 minutes?
Mere curiosity as to whether the person might be holding some marijuana is not enough of a valid basis for a frisk, at least in theory.
What's a poor person, who is totally innocent going to do in situations where the police are just fishing around? If there's no injury, is it realistic to expect poor residents to go meet with an attorney? Even if that happened, most attorneys would turn the potential client down quickly.
An unjustified detention that lasted only a few minutes? They would likely respond that the case just isn't worth the time and expense of litigation.
With no practical remedy for innocent persons stopped and frisked, there is not much of a downside for police to skirt the rules. So they have.
According to New York City Police Department (NYPD) records, officers' “suspicion” has been wrong nearly nine times out of ten. And of the cases where cops thought there was sufficient evidence to make an arrest and proceed to court, more than half of those cases were dismissed before trial.
The second development concerns the way in which the NYPD has exploited the stop-and-frisk doctrine.
When the Supreme Court ruled in the Terry case, it was reacting to a fairly random police-citizen circumstance. But in 1994, NYPD made a pivotal policy decision to have its officers hit the streets and pro-actively stop and frisk citizens as a way to make arrests for unlawful gun possession.
Under this new strategy, police would no longer passively patrol and then react to complaints or to the behavior of people walking the streets. Instead, the NYPD would stop and search people at every opportunity, based on the flimsiest of suspicions, at least in the poorer sections of the city.
Consider the remarkable expansion in the police tactic over the years.
In the late 1990s, the NYPD conducted about 150,000 stops on average per year. In 2004, the number had doubled to 313,000 stops. By 2011, the figure had doubled again to 684,000 stops in a single year.
For years, there were whispers and rumors that cops were evaluated according to the number of stops and arrests they conducted each month. The police brass always denied the allegation that their street cops were expected to meet quotas.
Even after some whistle-blower cops recorded their roll call meetings, where quota talk was caught on tape, police officials keep denying it and deflect criticism by telling everyone to focus on the overall city crime rate, which has been in decline.
Even though police data shows that 50 percent of the stops involve African Americans and 30 percent involve Latinos, Mayor Michael Bloomberg and Police Commissioner Raymond Kelly deny that police officers discriminate on the basis of race.
They say the cops have been simply intensifying their operations in high-crime areas, which happen to be minority neighborhoods. Attorneys defending the city from discrimination lawsuits can point out that the stops also overwhelmingly involve males, not females, but gender discrimination isn't involved.
Whatever may be the merits with respect to race, the courts must revisit the stop-and-frisk doctrine because it has become a pretext to roust almost any person out in public, regardless of race. Governor Cuomo's proposal, if approved, can improve the present situation by stemming arrests and prosecutions, but it will likely have little effect on the stop and frisk tactic that precedes the discovery of any contraband.
Well-to-do Americans do not realize it yet, but their right against unreasonable detentions is being trampled. They are oblivious because it's been the minorities in the poorer sections of the city who have borne the brunt of expanding police powers.
Timothy Lynch directs the Cato Institute's Project on Criminal Justice and blogs at policemisconduct.net. He welcomes comments from readers.